Justice Anthony Ombwayo v The Judicial Service Commission

b) A DECLARATION that the letter dated 14th March 2025 by M/S Keaton & Keaton Advocates is not a Petition within the meaning and intendment of Article 168(1), (2) and (3) of the Constitution of Kenya, 2010. c) A CONSERVATORY ORDER/AN INJUNCTION do issue pursuant to Articles 22 read with Article 23 Constitution of Kenya, 2010 restraining the Judicial Service Commission from proceeding as intimated in its letters Ref. No. JSC Petition 49 of 2025 dated 14th January 2026 and 27th January 2026. d) A CONSERVATORY ORDER/INJUNCTION do issue restraining The Judicial Service Commission from sending the so-called JSC Petition No. 49 of 2025 to the President of the Republic of Kenya within the terms of Article 168(5) of the Constitution of Kenya, 2010. e) Costs of this Petition. 2. The Petitioner also filed a Notice of Motion dated 13 th February 2026 seeking conservatory orders pending inter-partes hearing of the Petition. JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 2 | 62

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3. The Respondent filed a Replying Affidavit, sworn on 11th May 2026 by Winfridah B. Mokaya, the Secretary to the Judicial Service Commission, opposing the Petition. The Respondent contended that the Commission acted within its constitutional mandate by admitting JSC Petition No. 49 of 2025 for oral hearing and that the Petition was premature. 4. The Petitioner filed a Supplementary Affidavit sworn on 9 th June 2026 responding to the Replying Affidavit. The Petitioner also filed Supplementary Submissions dated 10th June 2026. 5. The matter proceeded to oral submissions on 20th July 2026. The Petitioner was represented by Mr. Amolo Advocate, while the Respondent was represented by Mr. Owiti Advocate. Background facts of the case 6. The facts that gave rise to the instant controversy are that while serving as a Judge in the Environmental and Land Court at Nakuru, two cases were placed before the Petitioner for hearing and determination, namely: a) Nakuru ELC Cause No. E033 of 2023 - Omar Mohammed Omar and Anor vs Joshua Kulei & others; and JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 3 | 62

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b) Nakuru ELC Petition No. E011 of 2024 - Juma Okumu vs Joshua Kulei & others. 7. Juma Okumu, the Petitioner in Nakuru ELC Petition No. E011 of 2024, Juma Okumu vs Joshua Kulei & Others, filed two Notices of Motion dated 4th September 2024 seeking to vary the directions/orders given by the Court on 14th October 2024, which directed that the Petition be heard by way of affidavit evidence and submissions. He prayed that the deponents of the affidavits filed before the Court be heard viva voce and cross-examined, and that the Ethics and Anti-Corruption Commission (EACC) be enjoined as an Interested Party or in any other capacity the Court deems fit, with directions on how the EACC will participate. After hearing both applications, the Petitioner herein delivered a Ruling on 6th February 2025, dismissing them. 8. Being aggrieved by the Court’s decision, the Petitioner (Juma Okumu) in Nakuru ELC Petition No. E011 of 2024 lodged a Notice of Appeal dated 19th February, 2025. He also filed, before the Court of Appeal in Civil Appeal (Application) E112 of 2025, an application for a stay of proceedings and for the setting aside of the ruling dated 6th February 2025 by Justice Ombwayo, together with all consequential orders arising therefrom. After considering the application for a stay, the JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 4 | 62

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Court of Appeal, in a Ruling delivered on 23rd January 2026, dismissed the application and declined to grant the orders sought. 9. Subsequently, the same Petitioner, Juma Okumu, filed two Notices of Motion dated 12th March 2025 in Nakuru ELC Petition No. E011 of 2024, Juma Okumu vs Agricultural Finance Corporation & 7 Others, seeking the suspension and stay of further proceedings in the cause; the recusal of the Petitioner herein from handling the said petition and any ancillary application filed in the petition; the transfer of the Petition to another Judge in the Environment and Land Court; and for Juma Okumu to be enjoined as the 6th Defendant in Nakuru ELC Case No. E033 of 2023. The Petitioner considered the Notices of Motion dated 12th March 2025 and dismissed them by a Ruling delivered on 10th July 2025. 10. Prior to the hearing and determination of the Notices of Motion dated 12th March 2025, M/s Keaton and Keaton Advocates, acting for Juma Okumu, authored a letter dated 14th March 2025 addressed to the Honourable Chief Justice and President of the Supreme Court, urging that administrative measures be taken against the Petitioner herein, including, but not limited to, causing the transfer of the litigation referred to in Paragraph 3 above from the Petitioner to another Judge, and that the intervention of the Honourable Chief JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 5 | 62

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Justice be immediate to forestall the Petitioner from hearing the application for his recusal and the Petition itself. Further, by a letter dated 30th April 2025, Juma Okumu himself addressed a letter to the Court. The matters that the law firm of M/s Keaton and Keaton Advocates accused the Petitioner of in their letter dated 14th March 2025, and in the letter of Juma Okumu dated 30th April 2025, were matters before the Court. 11. Dissatisfied with the Ruling of the trial Court delivered on 10 th July 2025, Juma Okumu filed a Notice of Appeal dated 16th July 2025. 12. On 17th September 2025, the Petitioner received a letter dated the same day from the Judicial Service Commission, the Respondent herein, to the effect that it was in receipt of a Petition dated 14th March 2025 from the law firm of M/s Keaton and Keaton Advocates, which was tabled before the Commission on 16th September 2025. Upon deliberation, it was resolved that the Petitioner be requested to submit a response to the Petition. 13. The Petitioner’s case is that the letter dated 14th March 2025 from the law firm of M/s Keaton and Keaton Advocates is not a Petition to the Respondent herein, but rather a letter to the Chief Justice and President of the Supreme Court seeking his/her intervention to JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 6 | 62

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administratively remove the two files that are the subject of the complaint against the Petitioner from his/her court. The letters dated 14th March 2025 and 30th April 2025 from M/s Keaton and Keaton Advocates and Juma Okumu were written well before the Notices of Motion dated 12th March 2025 were fixed for hearing, duly heard and dismissed. 14. The Petitioner responded to the letter from the Judicial Service Commission by a letter dated 29 th September 2025, but was of the view that his response did not receive meaningful consideration from the Respondent. 15. By a subsequent letter dated 14th January 2026, addressed to the Petitioner, the Judicial Service Commission invited the Petitioner to a hearing and requested that he submit any documents he wished to rely on and a list of witnesses he intended to call. He was also informed of his rights to be represented by an advocate of his choice and to cross-examine witnesses. The Judge sought to approach this court aggrieved by the process so far. The petitioner’s case JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 7 | 62

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16. The Petitioner's case was presented through his Supporting Affidavit sworn on 13th February 2026 and the Supplementary Affidavit sworn on 9th June 2026. The Petitioner testified through his affidavits. 17. The Petitioner narrated the history of the case, as summarised above. 18. The Petitioner contended that, during the pendency before him of the hearing of two Notices of Motion dated 12th March 2025, by the Petitioner, the firm of M/S Keaton & Keaton Advocates, acting for Juma Okumu, by letter dated 14th March 2025 wrote to the Honourable Chief Justice and President of the Supreme Court raising several issues including: a) that administrative measures be taken including but not limited to causing the transfer of the litigation from the Petitioner to another Judge; b) that the intervention of the Honourable Chief Justice be immediate to forestall the hearing by the Petitioner of the application for his recusal and also the Petition itself. JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 8 | 62

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19. The Petitioner stated that M/S Keaton & Keaton Advocates and their client, Juma Okumu, in their respective letters dated 14th March 2025 and 30th April 2025, in breach of established judicial protocols, accused him of matters already at issue before the court and repeatedly cited the case of the removal from the Judiciary of Justice Said Juma Chitembwe by a Tribunal appointed under Article 168 of the Constitution. 20. The Petitioner stated that, by letter dated 17th September 2025, the Judicial Service Commission informed him in writing that it had received a Petition dated 14th March 2025 from M/S Keaton & Keaton Advocates against him, that the Petition had been tabled before the Commission on 16th September 2025, and that, upon deliberation, it was resolved that he be requested to submit a response to the Petition. 21. The Petitioner submitted his response by letter dated 29th September 2025. However, he apprehended that the response did not receive meaningful attention and fair consideration, which explains the two letters from the Judicial Service Commission dated 14th January 2026 and 27th January 2026. JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 9 | 62

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22. The Petitioner contended that a careful perusal of the M/S Keaton & Keaton’s letter dated 14th March 2025 leaves no doubt that it is not a Petition but a letter to the Chief Justice, as Head of the Judiciary, seeking the Chief Justice’s intervention to administratively remove the files from the Petitioner. The letter makes generalised remarks that besmirch and disrespect the Petitioner. 23. The Petitioner further contended that the issues raised by M/S Keaton & Keaton’s letter were the issues that were judicially considered and dismissed in a ruling rendered on 10th July 2025. The Petitioner also noted that the Development Court of Corporation Appeal & in Okumu 9 Others V. Agricultural (Civil Appeal (Application) E112 of 2025) [2026] KECA 23 (KLR) considered an application for stay and dismissed it on 23rd January 2026. 24. The Petitioner stated that the Respondent's letters dated 14 th January 2026 and 27th January 2026 violate Articles 168(1), (2) and (3) read with Articles 160(1) and (5) of the Constitution of Kenya, 2010. That the failure to give fair consideration to his response dated 29 th JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 10 | 62

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September 2025 is a derogation of his rights under Article 47(1) of the Constitution. 25. In his Supplementary Affidavit sworn on 9 th June 2026, the Petitioner responded to the Replying Affidavit of Hon. Ms. Mokaya. He stated that the matters deposed in Paragraphs 1 and 2 of the Replying Affidavit are not contested. That the matters in Paragraphs 3, 4, 5, 6 and 7 of the said affidavit are essentially matters of opinion and properly belong to submissions. 26. The Petitioner further stated that the letter dated 14 th March 2025 by M/S Keaton & Keaton Advocates was not a petition at all but as it states "A Request for Administrative Action." In his response dated 29 th September 2025, he resolutely denied all allegations, challenged the characterisation of that letter as a Petition and stated that the issues before him were heard, determined and dismissed. 27. The Petitioner also stated that the deposition in Paragraph 15 of the Replying Affidavit concerning a follow-up letter dated 4th February 2026 was false and incorrect, as that letter stated that once the Respondent receives copies of the list of witnesses, statements and documents JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 11 | 62

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that the Petitioner intends to rely on during the hearing, the same shall be served. As of the date of his Supplementary Affidavit, four months later, no witness statements or documents had been made available to him. 28. The Petitioner further noted that by letter dated 12 th February 2026, M/S Keaton & Keaton Advocates informed the Judicial Service Commission that their client Mr. Juma Okumu desired to withdraw JSC Petition No. 49 of 2025. The Petitioner wondered on what footing he was still being pursued by the Judicial Service Commission. 29. The Petitioner contended that he had carefully perused the entirety of the letter dated 14th March 2025 and nowhere has it been alleged against him that: a) due to mental or physical incapacity he is unable to perform the functions of his office; b) he is in breach of a code of conduct prescribed for the holder of his office as Judge; c) he is bankrupt; d) he is incompetent; e) he is guilty of gross misconduct or misbehavior. JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 12 | 62

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30. The Petitioner stated that the Replying Affidavit of Hon Ms. Mokaya does not exhibit any Memo or Inter-Office Memo or minutes showing that any Sub-committee of the Respondent was convened to deliberate over the allegations by M/S Keaton & Keaton Advocates. The Respondent’s case 31. The Respondent's case was presented through the Replying Affidavit of Hon. Winfridah B. Mokaya, CBS, sworn on 11 th May 2026. The deponent stated that she is the Secretary to the Judicial Service Commission, a position established under Article 171(3) and Section 21 of the Judicial Service Act, Cap 8A of the Laws of Kenya. 32. Hon. Mokaya stated that the Commission's mandate under Article 172 of the Constitution expressly encompasses both the promotion of judicial independence and the promotion of judicial accountability. In her Replying Affidavit dated 11th May 2026, at paragraph 32(ii), Hon. Ms. Mokaya stated as follows— ‘ii) The recusal applications dismissed by the Petitioner on 10th July 2025 were determined by the Petitioner himself, the very judge whose conduct is the subject of the complaint before the Commission. A judge cannot be the JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 13 | 62

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final and binding arbiter of allegations concerning his own conduct. To hold otherwise would create a constitutionally impermissible situation in which no disciplinary inquiry could ever be conducted into a judge's conduct if the judge had previously adjudicated on related issues.’ 33. Hon. Mokaya asserted that under Article 249(2) of the Constitution, the Commission is subject only to the Constitution and the law in the exercise of its authority. The Commission is not subject to direction or control by any person or institution in the performance of its constitutional functions. 34. Hon. Mokaya further provided a detailed chronology of JSC Petition No. 49 of 2025 as follows: a) On 14th March 2025, the firm of Keaton & Keaton Advocates, acting on instructions of Mr. Juma Okumu, addressed a letter to the Honourable Chief Justice and President of the Supreme Court captioned – "Conflict of Interest and Request for Administrative Action Against the Hon. Mr. Justice Anthony Oteng'o Ombwayo in Respect of Nakuru ELC Case No. E033 of 2023 and Nakuru ELC Petition No. E011 of 2024." JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 14 | 62

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The letter was subsequently forwarded to the Commission. b) The complaint alleged, inter alia: i. the Petitioner had a personal conflict of interest arising from a longstanding personal relationship with Mr. Joshua Kulei; ii. the Petitioner had failed to disclose that relationship; iii. the Petitioner had received financial benefits from parties to the litigation; and iv. the Petitioner had made a judicial ruling contrary to a binding Supreme Court decision. c) The complaint was formally acknowledged by the Commission vide a letter dated 7th April 2025 and assigned the reference number JSC Petition No. 49 of 2025. d) The matter was tabled before the Commission at its meeting of 16 th September 2025. After deliberation, the Commission resolved that the Petitioner be invited to respond to the complaint vide a letter dated 17th September 2025. e) The Petitioner submitted his response vide his letter dated 29 th September 2025, in which he denied all allegations of personal impropriety, conflict of interest and financial benefit. JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 15 | 62

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f) The Commission considered both JSC Petition No. 49 of 2025 and the Petitioner's response at its meeting of 28 th November 2025. Having deliberated, the Commission resolved to admit the petition for oral hearing, finding that the complaint, on its face, disclosed sufficient grounds of alleged conduct warranting further inquiry under Article 168. g) Both the complainant and the Petitioner were formally notified of this decision vide letters dated 14th January 2026. h) A follow-up letter dated 4th February 2026 reiterated the Commission's notification and undertook to furnish the Petitioner with the list of witnesses intended to appear before the Commission. i) Vide a letter dated 12th February 2026, M/S Keaton & Keaton Advocates informed the Commission that their client, Mr. Juma Okumu, wished to withdraw JSC Petition No. 49 of 2025. j) The Petitioner filed the Court Petition on 13th February 2026, one day after the withdrawal of JSC Petition No. 49 of 2025. JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 16 | 62

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35. Hon. Mokaya contended that the withdrawal of the complaint does not render the Petition moot. She asserted that under Article 168(2) of the Constitution, the Commission is expressly empowered to initiate removal proceedings on its own motion, independently of any petition from a third party. 36. Hon. Mokaya further contended that the Petition remains fundamentally premature and barred by the doctrine of ripeness and constitutional avoidance. That at the time the Petition was filed, the proceedings before the Commission were still at a preliminary stage. The Commission had not undertaken any substantive inquiry, nor had it made any determination as to whether the constitutional threshold under Article 168(4) had been met. 37. Hon. Mokaya relied on Martin Nyaga Wambora v Speaker of the County Assembly of Embu & 3 Others [2014] eKLR for the proposition that there must be demonstration of a real danger that is imminent and evident, true and actual and not fictitious. She also relied on Jesse Kamau & 25 others v Attorney General [2010] KEHC 3172 (KLR) for the proposition that for a claim to be justiciable, it must present a real and substantial controversy. Also cited was the decision in Faraj & 3 others v Police & 2 others (Constitutional JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 17 | 62

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Petition 165 of 2020) [2022] KEHC 287 (KLR) for the proposition that the doctrines of ripeness and constitutional avoidance preclude courts from dealing with a constitutional issue where there exists another legal course which can give the litigant the relief he seeks. 38. Hon. Mokaya also contended that the doctrine of res judicata does not apply to the constitutionally mandated removal proceedings before the Commission under Article 168. She stated that the proceedings before the Commission and those before the Nakuru ELC are of a wholly different character. She further noted that the recusal applications were determined by the Petitioner himself, the very judge whose conduct is the subject of the complaint. She urged that a judge cannot be the final and binding arbiter of allegations concerning his own conduct. 39. Hon. Mokaya further contended that the Court of Appeal's dismissal of Juma Okumu's application for stay in Civil Appeal (Application) No. E112 of 2025 on 23rd January 2026 did not constitute an adjudication of the allegations. The Court of Appeal dismissed the application for a stay on procedural grounds, specifically the failure to satisfy the nugatory test. JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 18 | 62

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40. Hon. Mokaya asserted that the Commission's process was procedurally fair, lawful and compliant with the constitutional and statutory requirements for fair administrative action. She denied that the Petitioner's response had not received any meaningful attention or consideration. She stated that the Commission's decision to admit the complaint for oral hearing, after considering the response, does not mean the response was ignored. 41. Hon. Mokaya relied on Supreme Court Petition No. E001 of 2023; Hon. Justice Said Juma Chitembwe vs. The Tribunal Appointed to Investigate the Conduct of Hon. Justice Said Juma Chitembwe, Judge of the High Court for the proposition that the Commission's procedural framework was expressly endorsed by the Supreme Court. 42. Hon. Mokaya also relied on Justice Joseph Mbalu Mutava v. The Tribunal Appointed to Investigate the Conduct of Justice Mutava (Petition No. 15'B' of 2016 for the proposition that the Commission is not required to conclusively determine the truth or falsity of allegations at the preliminary admission stage. JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 19 | 62

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43. Hon. Mokaya further relied on Attorney-General & 2 Others vs. Ndii & 79 Others; Dixon & 7 Others (Amicus Curiae) [2022] KESC 8 (KLR) (the BBI Case), citing Abbott Laboratories v. Gardner 387 US 136 (1967), for the proposition that ripeness discourages a court from deciding an issue too early and requires a litigant to wait until an action is taken against which a judicial decision can be grounded. 44. Hon. Mokaya stated that the Petitioner had not demonstrated any of the prerequisites for the grant of the declaratory relief sought and the Petition ought to be dismissed with costs. Oral submissions 45. The advocates representing the parties highlighted their written submissions before the Bench on 20 th July 2026. The petitioner’s counsel was Mr. Omolo. The respondent’s counsel was Mr. Owiti. 46. Mr. Amolo for the Petitioner submitted that the Petitioner handled Nakuru ELC Cause 33/2023 and E011 of 2024 and issued directions that the matters be disposed of by Affidavit evidence. That JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 20 | 62

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decision was never reviewed or appealed against. One party was unhappy with the directions and, instead of appealing, decided to petition for the Judge's recusal and also wrote a letter to the Chief Justice requesting reallocation of the matter. The Petitioner heard the Motion for recusal and dismissed it on 25 th February 2025. A Notice of Appeal was filed to challenge the ruling in Civil Appeal E112/2025. An application for a stay of the proceedings was filed in the Court of Appeal, and it was dismissed on 23 rd January 2026, declining to stay the decision. 47. Mr. Amolo submitted that on 12th February 2026, M/S Keaton & Keaton Advocates wrote to the Judicial Service Commission stating that they had instructions to withdraw the complaint against the Judge. He further submitted that a Judge sitting in that capacity has decisional autonomy and independence, and that the only way to challenge the decision is by an Appeal, not by seeking recusal or removal. He prayed that, since the complaint had been withdrawn by the person who had filed it, the Judicial Service Commission was not entitled to proceed with the complaint. 48. Mr. Owiti for the Respondent submitted that the Notice of Motion in Civil Appeal E112/2025 was about a stay and the court found that the JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 21 | 62

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Appeal was arguable but the application failed on the question of nugatory. 49. Mr. Owiti submitted that under Articles 248 and 249 of the Constitution, the Judicial Service Commission is insulated from taking any orders from anyone as it executes its mandate and the issues raised in the Petition ought to be raised before the Judicial Service Commission during the preliminary hearing. Counsel urged that the Constitution protected the Judicial Service Commission from interference in the exercise of its mandate. The court is being asked to exercise a supervisory role before making any decision or recommendation for a tribunal. 50. Mr. Owiti submitted that the letter dated 14 th March 2025 raises grounds for removal (see paragraph 5 of the letter). That Article 168 provides that a Petition can be lodged by any person. He relied on Muya v Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya (Petition 4 of 2020) [2022] KESC 16 (KLR) (19 May 2022) (Judgment), specifically Paragraphs 105 to 170, in which the case was initiated by a letter, just as in this case. The letter was to the Chief Justice and he forwarded it to the Judicial Service Commission. The JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 22 | 62

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Petitioner then appeared before the Judicial Service Commission and stated that he did not mean to Petition for removal of the Judge but only seeking Chief Justice's administrative action. The court held that a Petition can take any form. 51. Mr. Owiti submitted that the Judicial Service Commission at the preliminary stage is to decide whether the Petition is frivolous. The Judicial Service Commission cannot be stopped by the court from exercising that mandate. He relied on the Justice Joseph Mbalu Mutava v. The Tribunal Appointed to Investigate the Conduct of Justice Mutava (Petition No. 15'B' of 2016) where the Court of Appeal held that the Judicial Service Commission at the preliminary stage is to decide whether the Petition is frivolous. 52. Mr. Owiti further submitted that once a Petition is filed, the Petitioner cannot withdraw it. He/she becomes a mere witness. The Petitioner's desire to withdraw a Petition does not extinguish the Petition, as the Judicial Service Commission is a constitutional creature. 53. Mr. Owiti submitted that the instant Petition is premature because the Petition before the Judicial Service Commission has not run its course. JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 23 | 62

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He relied on Kinuthia v Judicial Service Commission; Mumbi & 3 others (Interested Parties) [2020]KEHC 9224(KLR) where he submitted, the court declined to issue orders in a situation similar to the instant case, as it would prejudice the final decision of the Judicial Service Commission. 54. Mr. Owiti further submitted that Articles 160 and 172 of the Constitution ensure a balance between autonomy and accountability. Article 160 protects the court from control while making decisions. Anything falling outside that sphere of good faith, the independence is lost and Article 168 takes effect. He relied on Chitembwe v Tribunal Appointed to Investigate Into the Conduct of the Hon. Justice Said Juma Chitembwe, Judge of the High Court (Petition E001 of 2023) [2023] KESC 114 (KLR) (28 December 2023) (Judgment), , where the court held that decisions by a Judge can only be challenged by review or appeal. The complaint herein is about the Judge's fitness to sit over a matter and not the merits of the Judge's decision. 55. Mr. Owiti submitted that the Petition lacks merits and should be dismissed with costs and a declaration that the Petition is properly JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 24 | 62

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before the Judicial Service Commission and withdrawal by the complainant does not affect/extinguish the Petition. 56. In rejoinder, Mr. Amolo submitted that the Judicial Service Commission never removed Chitembwe J from office. Removal was by a Tribunal. The Judicial Service Commission only investigates the Judge. The Petition herein is not premature. He submitted that the moment a tribunal is appointed, a Judge is suspended from office and starts hiring Advocates to defend himself before the tribunal. The Petitioner is seeking redress to stop a process that steps on his rights. The complaint has been withdrawn. The Judicial Service Commission and Petitioner herein are not immune from Judicial process. This court has supervisory oversight over any person or institution in Kenya and the Judicial Service Commission cannot allege that it is not under the court's supervision. DETERMINATION 57. The petition was canvassed by way of written submissions. The counsel for both parties further made oral submissions before the bench. Issues for determination JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 25 | 62

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58. Having considered the pleadings, affidavits, documentary exhibits, oral submissions and the written submissions of both parties, the following issues fell for determination: a) Whether the Petition before this Court is premature and whether the doctrine of ripeness applies. b) Whether the letter dated 14th March 2025 by M/S Keaton & Keaton Advocates constitutes a valid Petition under Article 168 of the Constitution of Kenya, 2010. c) What is the effect of the withdrawal of JSC Petition No. 49 of 2025 by the complainant on 12th February 2026? d) Whether the Respondent violated the Petitioner's right to fair administrative action under Article 47(1) of the Constitution. e) Whether the Respondent's actions violated the independence of the Judiciary under Articles 160(1) and (5) of the Constitution. f) Whether the Petitioner is entitled to the reliefs sought. The Law 59. The Petition is rooted in the Constitution of Kenya, 2010 and various statutes invoked by both parties. The Petitioner hinged his petition on the following provisions1) Articles 19, 20, 21 and 22: These articles establish the framework for the Bill of Rights, its application and the enforcement of rights. JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 26 | 62

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2) Article 23: This article confers upon the Court the authority to hear and determine applications for redress of a violation of, or threat to, a right or fundamental freedom in the Bill of Rights, and to grant appropriate relief, including conservatory orders. 3) Article 47: This provision enshrines the right to fair administrative action. The Petitioner specifically alleges that the Respondent's actions, particularly its decision to admit the complaint for an oral hearing without giving his response meaningful consideration, constituted a derogation of this right. 4) Article 50: This article guarantees the right to a fair hearing. While not elaborated upon in detail, it is cited in the petition's heading and is relevant to the overall challenge to the process. 5) Article 160(1) and (5): This is a central pillar of the Petitioner's case. The Petitioner contends that the Respondent's actions constitute an interference with the independence of the Judiciary. Article 160(1) establishes the independence of the Judiciary, while Article 160(5) provides that a judicial officer shall not be subject to the direction or control of any person or authority in the exercise of judicial authority. 6) Article 168: This article provides the constitutional framework for the removal of a judge from office. The Petitioner argues that the letter from M/S Keaton & Keaton Advocates did not meet the requirements of JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 27 | 62

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a "petition" under Article 168, and that the process initiated by the Respondent was therefore invalid and violated his rights. 7) Article 171: This article establishes the Judicial Service Commission (the Respondent) as a constitutional commission. 8) Article 172: This article outlines the functions of the Judicial Service Commission. The Petitioner's challenge implicitly questions whether the Respondent acted within the scope of its mandate under this article when it admitted the complaint for an oral hearing. 60. The Respondent, the Judicial Service Commission, also relies on the 2010 Constitution of Kenya in its defence, citing:a) Article 168: On removal of a judge from office- The Respondent defends its actions as strictly compliant with the removal procedures and its constitutional mandate under this article. b) Article 172: On the functions of the Judicial Service Commission- The Respondent relies on this article to justify its actions as part of its constitutional function to receive and investigate complaints against judges, a mandate that is co-equal with its duty to promote judicial independence. c) Article 249(2): on Objects, authority and funding of commissions and independent offices- The Respondent invokes this provision, which JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 28 | 62

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grants the Commission independence and subjects it only to the Constitution and the law, asserting that it is not subject to direction or control in the performance of its functions. Whether the Petition before this Court is premature and whether the doctrine of ripeness applies. 61. The Respondent contended that the Petition before this Court is premature and barred by the doctrine of ripeness. The Respondent submitted that, at the time of filing, the proceedings before the Commission were still at a preliminary stage, and that the Petitioner should have allowed the process to run its course. 62. We have considered the Respondent’s submission above. The doctrine of ripeness requires that, for a claim to be justiciable, it must present a real and substantial controversy that unequivocally calls for adjudication of the rights asserted. The Respondent relied on Martin Nyaga Wambora v Speaker of the County Assembly of Embu & 3 Others [2014] eKLR; Jesse Kamau & 25 others v Attorney General [2010] KEHC 3172 (KLR); and Faraj & 3 others v Police & 2 others (Constitutional Petition 165 of 2020) [2022] KEHC 287 (KLR). JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 29 | 62

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63. However, the doctrine of ripeness does not apply where a party's constitutional rights are being violated and the party seeks to prevent the violation before it crystallises. In this case, the Respondent was proceeding with a Petition alleged to be invalid. The Petitioner's rights to fair administrative action and judicial independence were being violated. It was appropriate for the Petitioner to seek redress from this Court to prevent the violation from continuing. 64. The Respondent relied on Kinuthia v. Judicial Service Commission; Mumbi & 3 others (Interested Parties) [2020]KEHC 9224(KLR) for the proposition that the court declined to issue orders in a situation similar to the instant case. 65. The court notes that the Petitioner is a Judge of the Environment and Land Court. If the Respondent's proceedings are allowed to continue, they could result in the Petitioner's suspension and removal from office. This would cause irreparable harm to the Petitioner's career and reputation. It is appropriate for this Court to intervene to prevent such harm. The question of the petition's ripeness was decided with finality by the Supreme Court in Chitembwe v Tribunal Appointed to Investigate Into the Conduct of the Hon. Justice Said Juma Chitembwe, Judge of the High Court (Petition E001 of 2023) JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 30 | 62

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[2023] KESC 114 (KLR) (28 December 2023) (Judgment), where the Court held – ‘In conducting the proceedings, JSC was performing a quasi- judicial function. If the petitioner felt aggrieved by the conduct of the proceedings before JSC, which in his view amounted to a violation of his rights and fundamental freedoms, his recourse was not to the Tribunal that would be formed many months later but to the High Court, which had jurisdiction to determine questions of whether a right or fundamental right has been denied, violated, infringed, or threatened under article 165(3)(b) of the Constitution.’ 66. The emerging jurisprudence from the court is that the court can intervene in internal disciplinary proceedings of the employer. The court notes that, after the recusal decision, no petition was filed by either the respondent or the complainant. The Respondent’s action must strictly comply with constitutional safeguards under Article 236 of the Constitution. Article 236 of the Constitution states: ‘236. Protection of public officers 1. A public officer shall not be— JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 31 | 62

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(a)victimised or discriminated against for having performed the functions of office in accordance with this Constitution or any other law; or (b)dismissed, removed from office, demoted in rank or otherwise subjected to disciplinary action without due process of law.’ 67. The Court has routinely intervened in disciplinary proceedings not only for Judges and employees of the JSC, but also for ordinary employees whose cases were pending before their employers. For instance, in Mulwa Msanifu Kombo v Kenya Airways [2013] KEELRC 747 (KLR) at paragraphs 21 the court held that: “21. Questions relating to disputes of administrative disciplinary proceedings or actions pending before employers properly fall within the boundaries of this court as established in accordance with the provisions of the Constitution… 22. The court in exercising the jurisdiction to intervene in an administrative disciplinary procedure must proceed with caution so as to protect the employer's right to fairly discipline or terminate the employment relationship… 23. The intervention in disciplinary process by employers will be entertained by the court rarely and in clear cases JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 32 | 62

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where the process is likely to result into unfair imposition of a punishment against the employee. The court will intervene in an administrative disciplinary procedure if it is established that the procedure relied on by the employer offends fairness or due process by not upholding the rules of natural justice, or, if the procedure is in clear breach of the agreed or legislated or employer’s prescribed applicable policy or standards, or, if the disciplinary procedure were to continue it would result into manifest injustice in view of the circumstances of the case….” 68. In the above case, the Court directed that the claimant should remain in the respondent's employment and on duty until the conclusion of the disciplinary process. See also Mworia v Water Resources Management Authority & 2 others (Constitutional Petition 4 of 2015) [2015] KEELRC 1124 (KLR) (15 May 2015) (Ruling), at paragraphs 25 and 31; The intervention does not end the employer's cause but merely sets the process back on a lawful track. JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 33 | 62

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69. Accordingly, we find that the Petition before this Court is not premature. The Petitioner was entitled to seek redress from this Court to prevent the violation of his constitutional rights. Whether the letter dated 14th March 2025 by M/S Keaton & Keaton Advocates constitutes a valid Petition under Article 168 of the Constitution. 70. Article 168 of the Constitution of Kenya, 2010 provides the framework for the removal of Judges of superior courts. Article 168(1) sets out the grounds for removal as follows: "(1) A judge of a superior court may be removed from office only on the grounds of— (a) inability to perform the functions of office arising from mental or physical incapacity; (b) a breach of a code of conduct prescribed for judges under Article 153(5) to the extent that it demonstrates that the judge is not fit to hold office; (c) bankruptcy; (d) incompetence; or (e) gross misconduct or misbehaviour." JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 34 | 62

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71. Article 168(2) provides that the removal of a judge may be initiated by the Judicial Service Commission acting on its own motion or by petition to the Judicial Service Commission from any person. 72. Article 168(3) prescribes that – ‘A petition by a person to the Judicial Service Commission under clause (2) shall be in writing, setting out the alleged facts constituting the grounds for the judge's removal.’ 73. Article 168(4) then mandates the Commission to consider the petition and, if it is satisfied that the petition discloses a ground for removal under clause (1), send the petition to the President. 74. The Petitioner contended that the letter dated 14th March 2025 from M/S Keaton & Keaton Advocates was not a Petition within the meaning and intendment of Article 168. The Respondent, on the other hand, contended that the letter constituted a Petition and that the Commission was entitled to treat it as such. JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 35 | 62

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75. We have carefully considered the letter dated 14th March 2025 from M/S Keaton & Keaton Advocates. A careful reading of the letter reveals several critical features that are fatal to the Respondent's contention that it constitutes a valid Petition under Article 168. 76. First, the letter is addressed to the Honourable Chief Justice and President of the Supreme Court, not to the Judicial Service Commission. It is specifically captioned – "Conflict of Interest and Request for Administrative Action Against the Hon. Mr. Justice Anthony Oteng'o Ombwayo." 77. The phrase "Request for Administrative Action" is significant. The letter is not framed as a Petition for the removal of a Judge under Article 168. It is framed as a request to the Chief Justice to exercise administrative powers to transfer the files from the Petitioner. 78. Second, the body of the letter explicitly requests the Chief Justice to intervene administratively to have the court files in both the petition and the civil cases removed from the Petitioner and placed before another Judge for final disposal. The letter does not request the Chief Justice to forward the matter to the Judicial Service Commission for the Petitioner's removal from office. The request is for administrative JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 36 | 62

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action within the Chief Justice's powers as head of the Judiciary, not in any other capacity. 79. Third, the letter was written before the Petitioner had rendered his ruling on the recusal applications, on 10th July 2025. The letter was therefore an attempt to cause the Chief Justice to intervene before the judicial process had run its course. 80. Fourth, the Respondent relied on the Muya case to support the proposition that a petition can take any form. In Muya v Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya (Petition 4 of 2020) [2022] KESC 16 (KLR) (19 May 2022) (Judgment), the Supreme Court held that a petition to the JSC could take the form of a letter. It stated: “The letter to the Chief Justice set out the alleged facts, which the Bank believed constituted the grounds for the petitioner’s removal from office, and met the features of a petition. Under article 168(2) of the Constitution, the JSC could, on its own motion, initiate the removal of a judge. The Chief Justice, in the instant case, in their JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 37 | 62

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administrative capacity, merely forwarded the complaint together with the petitioner’s response to the JSC, and the JSC, being satisfied that there were issues for investigation, seized the complaint… For the process of removal of a judge to promote public confidence in the Judiciary, and to give certainty on the process, the complaint to the JSC must not be initiated in a casual and unambiguous manner. The controversy generated by the manner the complaint was initiated raised the question whether the letter merely sought the Chief Justice’s administrative intervention or whether it was the petition, and in order to prevent abuse of its process by litigants who were likely to file frivolous or vexatious complaints, it was time the JSC considered a structured and formal complaints initiating mechanism.” 81. We have carefully considered the foregoing authority. However, the facts in the Muya case are distinguishable. In that case, the letter was addressed to the Chief Justice and clearly sought the judge's removal. The Chief Justice asked the judge for a response and, upon JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 38 | 62

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receipt, formally forwarded the complaint and the judge's response to the JSC. The complainant clearly sought the judge's removal. In the present case, the letter is addressed to the Chief Justice and seeks administrative intervention to transfer files. The letter does not ask the Chief Justice to initiate removal proceedings against the Petitioner. There is no evidence that the Chief Justice forwarded the complainant's letter to the Respondent as the basis for the judge's removal process. 82. The Chief Justice received the letter, and there is no evidence of any action taken on it. The court reiterates the words of the Supreme Court in the Muya Case above – ‘Complaints and removal proceedings against judges were generally very sensitive issues. Such proceedings ought to be dealt with strictly in accordance with a clear constitutional and legislative framework, which had to also follow an established clear and objective standard.’ 83. The Court in Muya case(above) further stated – ‘Though independent in the way they arrived at their decisions, judges were subject JUDGMENT ELRC PET NO. E052 OF 2026 to several forms P a g e 39 | 62 of

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accountability which were not incompatible with their individual and institutional independence. They were accountable through the public nature of their work but more particularly through the appellate system of the courts.’ 84. We are also guided by the principle that the removal of a Judge from office is a serious constitutional process that must be conducted in strict accordance with the constitutional provisions. The Constitution sets out a clear framework for the removal of Judges. The threshold for initiating removal proceedings is high, and the Commission must ensure strict compliance with the constitutional requirements. (Muya Case above) 85. Article 168(3) provides that the petition shall be in writing, setting out the alleged facts constituting the grounds for the judge's removal. The letter dated 14th March 2025 does not properly set out the alleged facts constituting the grounds for removal. It is a letter to the Chief Justice seeking administrative intervention, not a Petition to the Judicial Service Commission for the removal of a Judge. We take cognisance that the letter used the words;- JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 40 | 62

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“On the basis of the foregoing, our client requests that the Hon. Chief Justice and President of the Republic of Kenya (sic) intervene through necessary administrative action, including but not limited to, causing the transfer of the above-mentioned matters from the disgraceful Mr Justice Ombwayo and be placed before another judge for hearing and disposal.” 86. Applying the ejusdem generis rule of interpretation, this court finds that the words-“necessary administrative action, including but not limited to’ in the letter by the lawfirm meant the exercise of the administrative powers of the Chief Justice, as the head of the Judiciary, relating to the transfer of the files from the Petitioner to another judge for hearing and disposal. The Petitioner was apparently seeking the intervention of the Chief Justice, as head of the Judiciary, having also sought the judge's recusal. 87. The Respondent also relied on Justice Joseph Mbalu Mutava v. The Tribunal Appointed to Investigate the Conduct of Justice Mutava (Petition No. 15'B' of 2016) for the proposition that the Commission is not required to conclusively determine the truth or falsity of allegations at the preliminary admission stage. We have no JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 41 | 62

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difficulty with that proposition. However, the preliminary question here is whether the letter constitutes a Petition at all, not whether the allegations have been proved. The letter does not meet the threshold of a Petition under Article 168 because it is and was never addressed or formally forwarded to the Commission and it was not intended for removal of the judge as required by Article 168(3). 88. Accordingly, we find that the letter dated 14 th March 2025 by M/S Keaton & Keaton Advocates is not a Petition within the meaning and intendment of Article 168(1), (2) and (3) of the Constitution of Kenya, 2010. The Respondent erred in treating the said letter as a Petition and in commencing proceedings against the Petitioner based on it. What is the effect of the withdrawal of JSC Petition No. 49 of 2025 89. Based on our finding above that there was no valid petition, we proceed to consider the instant issue on a without prejudice basis. 90. The Petitioner placed significant reliance on the fact that by letter dated 12th February 2026, M/S Keaton & Keaton Advocates informed the Judicial Service Commission that their client, Mr. Juma Okumu, wished to withdraw JSC Petition No. 49 of 2025. The Petitioner JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 42 | 62

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submitted that, since the complaint has been withdrawn by the person who filed it, the Judicial Service Commission is not entitled to proceed with it. 91. The Respondent submitted that under Article 168(2) of the Constitution, the Commission is expressly empowered to initiate removal proceedings on its own motion, independently of any petition from a third party. That nothing in law prevents the Commission from continuing to process the complaint in JSC Petition No. 49 of 2025 notwithstanding its withdrawal by the original complainant. 92. We have already found that the letter dated 14 th March 2025 is not a valid Petition under Article 168. It follows that there was no valid Petition before the Commission. The letter dated 12 th February 2026 by M/S Keaton & Keaton Advocates withdrawing the so-called Petition was therefore superfluous. 93. The Commission's power under Article 168(2) to initiate removal proceedings suo motu cannot be used to validate an invalid Petition. The Commission must have proper grounds to initiate proceedings on its own motion. In this case, the only basis for the Commission's JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 43 | 62

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proceedings was the invalid letter dated 14th March 2025. The withdrawal of that letter removed even the tenuous basis for the Commission's proceedings. 94. Assuming JSC Petition No. 49 of 2025 was valid, the court takes cognizance that the issue was settled in Chitembwe v Tribunal Appointed to Investigate Into the Conduct of the Hon. Justice Said Juma Chitembwe, Judge of the High Court [2023] KESC 114 (KLR) where, despite 4 of the petitions before the JSC having been withdrawn, the JSC seized the matter and initiated the proceedings for removal of the Judge. The Supreme Court held: '88. From the record, it is apparent that four complaints were filed against the petitioner with the JSC and later withdrawn. Due to the persistence of the allegations and because of the intense public interest elicited by recordings and social media postings, JSC resolved to initiate, on its own motion, proceedings for the removal of the petitioner from office. That course was perfectly permitted by the force of article 168(2) of the Constitution, which we have set out in the previous paragraph.’’ JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 44 | 62

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95. It is clear that the Respondent can consider and initiate its own petition for removal of the judge. In the instant case, however, after the complainant withdrew the complaint, the Respondent did not initiate its own petition seeking the judge's removal. 96. We reiterate that there was no valid petition filed but a request for administrative intervention by the Chief Justice as the head of the Judiciary. Whether the Respondent violated the Petitioner's right to fair administrative action, Article 47 97. Having found that the letter dated 14th March 2025 does not constitute a valid Petition under Article 168, it follows that the Respondent's proceedings based on that letter were unlawful from the outset. The Respondent acted without jurisdiction in treating the letter as a Petition and in inviting the Petitioner to respond. 98. Article 47(1) of the Constitution provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. We hold that the Respondent's actions were not lawful because they were based on an invalid Petition. JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 45 | 62

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99. Furthermore, the Respondent's decision to admit the so-called Petition for oral hearing without ensuring that the complainant had properly invoked the jurisdiction of the Commission under Article 168 was procedurally unfair. The Petitioner was put to the trouble of responding to allegations that did not constitute a proper Petition under the Constitution. 100.We also note that the Petitioner deposed in his Supplementary Affidavit that as of the date of his affidavit (9th June 2026), four months after the letter dated 4th February 2026, no witness statements or documents had been made available to him. This demonstrates that the Respondent's process was not only unlawful but also procedurally deficient. 101.Accordingly, we find that the Respondent violated the Petitioner's right to fair administrative action under Article 47(1) of the Constitution by proceeding on the basis of an invalid Petition and by failing to ensure that the proceedings were conducted in a procedurally fair manner. Whether the Respondent's actions violated the independence of the Judiciary JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 46 | 62

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102. The Petitioner contended that the Respondent's actions in admitting JSC Petition No. 49 of 2025 for oral hearing amounted to interference with the independence of the Judiciary as provided for under Article 160(1) and (5) of the Constitution. 103. Article 160(1) of the Constitution provides that the Judiciary shall be independent and shall be subject only to the Constitution and the law. Article 160(5) provides that a member of the Judiciary is not liable in any civil or criminal proceedings for any act or omission by the member in the exercise of judicial authority. Article 160 (5) of the Constitution provides that: “A member of the Judiciary is not liable in an action or suit in respect of anything done or omitted to be done in good faith in the lawful performance of a judicial function.” 104.The allegations in the letter dated 14 th March 2025 were directly related to the Petitioner's judicial rulings and directions. The letter complained about the Petitioner's direction that the petitions be heard through affidavit evidence and his ruling of 6th February 2025. These were judicial decisions made by the Petitioner in the exercise of his judicial authority. The Respondent's decision to treat the letter as a JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 47 | 62

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Petition for removal was an attempt to subject the Petitioner's judicial decisions to scrutiny through the removal process. This is precisely what Article 160(5) seeks to prevent. A Judge is not liable for any act or omission in the exercise of judicial authority. The proper way to challenge a Judge's decision is through appeal or review, not through removal proceedings. The Respondent's actions therefore violated the principle of independence of the Judiciary. 105. The Respondent submitted that Article 160 protects the exercise of judicial authority and decisional independence while adjudicating cases, but does not insulate judges from accountability for personal conduct. We agree with that proposition. However, the allegations in the letter dated 14th March 2025 were not merely about personal conduct. They were directly linked to the Petitioner's judicial decisions. The complaint that the Petitioner's ruling is contrary to a binding Supreme Court decision concerns the exercise of judicial authority. The complaint about the Petitioner's relationship with Mr. Joshua Kulei was raised in the context of the Petitioner's judicial decisions. The Commission cannot use the removal process to review judicial decisions that have already been made. JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 48 | 62

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106. We further note that the Petitioner heard and dismissed the recusal applications in his ruling of 10 th July 2025. The Court of Appeal in Okumu V. Agricultural Development Corporation & 9 Others (Civil Appeal (Application) E112 of 2025) [2026] KECA 23 (KLR) also considered some of the allegations in the letter and dismissed the application for stay of the proceedings before Justice Ombwayo, the petitioner, on 23rd January 2026. The Court finds that the Respondent’s decision to proceed with the impugned petition after these judicial determinations undermines the finality of judicial decisions and violates the independence of the Judiciary. 107. We were not persuaded by the argument by the respondent that, since the decision was by the judge whose conduct was in question, finality could not apply. The petitioner considered the grounds of recusal, including the allegation of conflict of interest, and made a decision. We further note that the letter dated 14 th March 2025 was written before the Petitioner rendered his ruling on the recusal application. The allegations in the letter were subsequently considered and dismissed by the Petitioner in his ruling of 10 th July 2025. It would be contrary to the principles of judicial independence and finality to allow the same allegations to be resurrected through the letter to the Chief Justice. JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 49 | 62

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108. The court is guided by the Supreme Court decision in Muya v Tribunal Appointed to Investigate the Conduct of Justice Martin Mati Muya, Judge of the High Court of Kenya [2022] KESC 16 (KLR) where the accountability of judges with respect to decisions was held to be through the appellate mechanism. The court stated‘Though independent in the way they arrived at their decisions, judges were subject to several forms of accountability which were not incompatible with their individual and institutional independence. They were accountable through the public nature of their work but more particularly through the appellate system of the courts. There was a duty on the judges to give reasons for their decisions. It was only by giving reasons for their decisions that those aggrieved could appeal against those decisions. Transparency that built public confidence in the judicial process would be achieved through reasoned decisions.’ (emphasis given). 109. The recusal decision was appealable, but no appeal was preferred. In the case of Oilfields Engineering & Supplies Ltd v Zakhem International Construction Ltd; Ecobank Kenya Ltd & 3 others (Interested Parties) (Civil Appeal (Application) E504 of JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 50 | 62

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2024) [2025] KECA 1362 (KLR) (25 July 2025) (Ruling), a decision of the High Court refusing to recuse itself was appealed to the Court of Appeal. 110. In Mboya & another v Judicial Service Commission & another; Rawal and 5 others (Interested Parties) (2020) KEHC 9225 (KLR), the court held:“Of the three sub-issues, the final one is whether the JSC can conduct a merit review of a judgment or ruling in order to determine whether there was misconduct on the part of a Judge or a Judicial Officer. The JSC appears to agree with Justices Ibrahim Ojwang and Njoki Ndung’u that it does not have powers to conduct a merit review of the decision of a Judge or Judicial Officer. I won’t find any difficulty in agreeing with that position. Whenever a party is aggrieved by the decision of a Judge or Judicial Officer the way to go is to file an appeal or seek review. This position of the law was clearly enunciated by Ibrahim SCJ, in Yusuf Gitau Abdalla v Building Centre (K) Ltd & 4 others [2014] eKLR as cited by Dr Mutunga in Salat case as follows: …Courts of justice have the jurisdiction to do justice and not injustice. However, the law acknowledges that judges JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 51 | 62

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are human and are fallible hence the judicial remedies of appeal and review. It cannot be said, as suggested by Justices Ojwang and Njoki Ndungu, that judgments and rulings are entirely a no-go-zone for the JSC. Nevertheless, the JSC should avoid complaints which invite it to analyse a judgment or ruling in order to determine alleged incompetence of the Judge or Judicial Officer who authored the decision… It is appreciated that the JSC cannot block anybody from complaining about the merits of the decision of Judges and Judicial Officers. However, once the JSC determines that the complaint is about merits of the decision, it should drop such a complaint like a hot potato without even bothering to ask the Judge or Judicial Officer to respond to the complaint…” 111. Similarly, in Bellevue Development Company Ltd v Gikonyo & 3 others (2020) KESC 43 (KLR), the Supreme Court stated: “A Judge, in our view, thus remains unquestionably immune as long as he does not take actions that intentionally and plainly prevent litigants from enjoying their constitutional and statutory rights. The duty imposed on a Judge then, is only to recognize that his JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 52 | 62

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own decisions may sometimes be in error and to ensure that orders affecting important constitutional rights can be reviewed or appealed in another court. But the conduct of a Judge who acts mala fides or unlawfully may thus trigger proceedings before the Judicial Service Commission and may ultimately lead to his removal thus the need for extreme care in the enjoyment of immunity… Suing a Judge or Judicial Officer for rendering an unfavorable decision rather than appeal or seek a review was in our opinion a misconception and a step in the wrong direction on the part of the petitioner. As a court, we are cognizant of the fact that at times litigants may feel aggrieved by some of the decisions that Judges and Judicial Officers make…” 112. The Court finds that the respondent is treading on dangerous ground (see Mboya case above) as it purports to question the merit of the petitioner's decision on recusal and the joinder. Is that not the role of the Court of Appeal? We noted the following observation of the petitioner in the ruling dated 10th July 2025 (annexure ‘AO3’ by the Petitioner) on the recusal: “A lot of ink and paper has been used in this application but basically the accusation against the judge that forms JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 53 | 62

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the basis of the application for recusal is that the judge has been soliciting for bribes through his relatives and that the judge has been meeting litigants and their lawyers and that one Joshua Kulei has given the judge Ksh 30, 000,000 with a balance of Ksh 20,000,000 to be paid at the conclusion of the case. The court agrees with the parties that the right to a fair hearing before an impartial tribunal is a cornerstone of the Kenyan Judicial system. That Article 50 of the Constitution of Kenya. 2010, guarantees every person the right to have any dispute resolved by an independent and impartial tribunal. This right is further reinforced by the Judicial Service (Code of Conduct and Ethics) Regulations, 2020, which provide guidelines on the circumstances under which a judge should recuse themselves, Rule 21(1) of the Judicial Service (Code of Conduct and Ethics) Regulations, 2020, states that a judge may recuse himself or herself in any proceedings in which his or her impartiality might reasonably be questioned where the judge is a party to proceedings, was or is a material witness in the matter under controversy or has personal knowledge of disputed evidentiary facts concerning the proceedings…the court has not discerned any evidence of JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 54 | 62

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actual bias or impartiality in the supporting affidavits.‘(Emphasis given) 113. The Petitioner in the recusal decision above, further held‘Moreover, there are no sufficient grounds to require me to recuse myself from hearing the matters which are pending judgment. This court should guard against being boxed into a corner of fear by an applicant who has no basis in her application for recusal but merely wants another judge to hear the case which is pending judgment. The applicants have not demonstrated to this court the alleged breach of integrity, and therefore the applications have no basis and are dismissed accordingly.” 114. A perusal of the letter dated 14th March 2025 discloses that the same issues raised in the application for recusal are also raised therein. This amounts to a second bite at the issue. The JSC cannot substitute the appellate court. The Judge acknowledged that the allegations of bribery could go to the Respondent. Post the decision, the complainants did not pick the cue from the petitioner to institute a petition. Instead, the complainant withdrew the complaint after the JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 55 | 62

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Petitioner's transfer from Nakuru to Mombasa. The court concluded that the relief sought from the Chief Justice for the transfer of files had been actualised, and thus the complainant appeared not to have any further grievance. From the foregoing, the court read that the administrative action sought from the Chief Justice was complete. 115. In the appeal related to stay of the proceedings before the petitioner, Okumu v Agricultural Development Corporation (Application) E112 of & 9 others (Civil Appeal 2025) [2026] KECA 23 (KLR) (23 January 2026) (Ruling), Juma Okumu (the complainant ) moved the Court of Appeal by an application dated 3rd November 2025 seeking orders that pending the hearing and determination of Nakuru Civil Appeal Number E167 of 2025; the Court suspends and/or stays further proceedings in Nakuru Environment and Land Court Petition No.11 of 2024; 116. The Court of Appeal (above) held – ‘3.On 14 October 2024, Ombwayo, J. suo motto directed that the said petition shall be determined by way of affidavit evidence despite objection by the applicant's advocates. Aggrieved by the said decision, the applicant filed an application dated 4th JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 56 | 62

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November 2025 seeking to review the said directions citing two grounds: (a) there existed sufficient cause to merit the variation; (b) there existed an error apparent on the face of the record settled because law that the directions contentious contravened land ownership disputes ought to be determined by way of viva voce evidence as opposed to affidavit evidence only. By a ruling dated 6th February 2025, Ombwayo, J. dismissed the said application. Aggrieved by the said ruling, the applicant filed and served a notice of appeal dated 19th February 2025. The applicant also wrote a letter on 20 February 2025 addressed to the Deputy Registrar bespeaking(sic) typed proceedings. The applicant instituted Nakuru Civil Appeal No. E167 of 2025 against the ruling. In the instant application, the applicant is urging this Court to stay the proceedings in Nakuru ELC Petition No. E011 of 2024 pending the hearing and determination of the said appeal. The key grounds in support of the application are that: a. the JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 57 | 62

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applicant's appeal is arguable. In support of this ground, the applicant contends that the learned Judge erred in fact and in law in failing to review or vary the directions issued on 14th October, 2024 on grounds that there existed sufficient cause; that there exists an error apparent on the face of the record, to wit, the trial court totally disregard binding Supreme Court and the Court of Appeal decisions which have settled the law that petitions which raise highly contested issues of fact, including allegations of fraud, forgery, and illegal acquisition of public land and title, cannot be adequately determined through affidavit evidence without the examination and cross-examination of the deponents….’’ 117. The Court of Appeal in the above case held that the issues raised were arguable, but the nugatory threshold was not met, as the appellant could always appeal if not satisfied with the judgment. The decision was delivered on 23rd January 2026. The application was filed post the recusal decision. The appellate court found no proof of gross injustice before the lower court presided over by the petitioner. JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 58 | 62

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118. There was no proof of an appeal against the recusal decision. The court is of the view that the applicant, having failed to get the petitioner to recuse himself from presiding over the case, proceeded to the Chief Justice for administrative action; somehow, the complaints found their way to the JSC without any paper trail. The process before the JSC amounts to interference with the independence of the judiciary. 119.We find that all the issues raised by the Judicial Service Commission in its communication to the petitioner were subject to the petitioner's ruling and thus amount to questioning the merit of the petitioner's decision to reject the application for recusal from the case. The merit of that decision can only be decided by the appellate court. 120.Accordingly, we find that the Respondent's actions violated the decisional independence of the petitioner as a judge under Articles 160(1) and (5) of the Constitution. Whether the petitioner is entitled to reliefs sought JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 59 | 62

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121. The court holds that the petition was not premature and was properly before the court. The court holds that the letter dated 14th March 2025 by M/S Keaton & Keaton Advocates is not a valid Petition under Article 168. The Respondent was not seized of jurisdiction to invite the Petitioner to respond to a document which was not a petition under Article 168 of the Constitution. The court further holds that the Respondent violated the Petitioner's right to fair administrative action. The Respondents' actions violated the independence of the Judiciary. The court was satisfied that the petition has merit. Disposition 122. We enter judgment for the Petitioner against the Respondent as follows: a. A DECLARATION that no Petition contemplated by Article 168 of the Constitution of Kenya, 2010 has been presented against the Petitioner. b. A DECLARATION that the letter dated 14th March 2025 by M/S Keaton & Keaton Advocates is not a Petition within the meaning and intendment of Article 168(1), (2) and (3) of the Constitution of Kenya, 2010. JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 60 | 62

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c. A PERMANENT INJUNCTION is issued pursuant to Articles 22 read with Article 23 of the Constitution of Kenya, 2010, restraining the Judicial Service Commission from proceeding as intimated in its letters Ref. No. JSC Petition 49 of 2025 dated 14th January 2026 and 27th January 2026. d. A PERMANENT INJUNCTION is issued restraining the Judicial Service Commission from sending the purported JSC Petition No. 49 of 2025 to the President of the Republic of Kenya within the terms of Article 168(5) of the Constitution of Kenya, 2010. e. Considering the public interest in the petition, the Court orders each party to bear their own costs. 123. It is so Ordered. ’DELIVERED, DATED AND SIGNED IN NAIROBI ON THIS 2 ND DAY OF OCTOBER 2026 JEMIMAH KELI JUDGE ONESMUS MAKAU JUDGE JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 61 | 62

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DR JACOB GAKERI JUDGE Appearances For Petitioner- Mr. Amolo instructed by Amolo & Kibanya Advocates For Respondent – Mr. Owiti Court Assistants Otieno Ngatha Wangu JUDGMENT ELRC PET NO. E052 OF 2026 P a g e 62 | 62

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